DAVID v. CITY OF LOS ANGELES (1984)

Defendants City of Los Angeles and Richard Lamb appeal from a judgment entered against them for both compensatory and punitive damages.   Appellants urge that the trial court improperly admitted evidence of defendant Lamb's psychiatric examination, taken in the course of a workers' compensation appeal and, further, that the punitive damages award is disproportionate.   We find no error, and affirm the judgment.

FACTS

 On appeal, this court must look to the evidence supporting the successful party and resolve all factual conflicts in favor of respondents.   (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480.)   On November 17, 1976, 18-year-old twins Richard and Robert David were en route home from a friend's house.   Richard was driving, Robert was riding in the front passenger seat.   A friend with whom they had been visiting earlier was driving alongside, while Robert was talking on the CB radio with yet another friend in the neighborhood.   As the car traveling alongside turned off, Richard gave a quick honk or two on the horn;  the other driver responded similarly.   Very shortly thereafter, Richard noticed the red lights of a police car in the rear view mirror.   Robert radioed their friend that they were being pulled over by the police.   It was 1:30 in the morning and the streets were deserted.

After getting out of the car, Richard produced his driver's license.   One of the two police officers asked him “[w]hat's this horn honking bullshit?”   Richard waited approximately 15 minutes while the two officers were in their patrol car, on the radio.   Richard then asked if he was going to be given a citation;  he was told by the officer to keep his mouth shut.   During the next 10 minutes the two officers, out of their patrol car, were talking between themselves.   Richard then told them he thought they were violating his rights by keeping him so long without giving him a ticket and letting him go home.   Officer Lamb jumped at him, grabbing the collar of his shirt, and held a fist to his face.   Richard asked whether the officer planned on hitting him.   The officer then applied a bar arm control hold with his right forearm in front of Richard's neck and his left arm behind the neck and, choking Richard, took him down to the pavement.   The officer smashed Richard's head against the ground three to four times.   Richard lost consciousness briefly and sustained some abrasions and other facial injuries.   His glasses were broken.   He was handcuffed and placed in the patrol car.

Robert David saw these events from inside the car, where he had remained talking on the CB radio.   As Officer Lamb grabbed his brother, Robert saw that the officer's face was red, he seemed to be in a rage, and he was yelling obscenities.   Robert approached the other officer and pleaded with him to intervene.   He was told to stay where he was.   Robert persisted and the other officer grabbed Robert in a similar hold and threw him down to the ground.   He, too, was handcuffed and placed in the patrol car.   Robert's eyeglasses were thrown into the police car after him.

The officers took Richard and Robert to a hospital for medical examination, then to the police station where they were booked.   Richard David was released at about 5 a.m.   Robert was released at about 9 a.m.

Richard and Robert David thereafter filed their complaint.   Richard set forth causes of action for false arrest, battery, and negligent employment or supervision of the two police officers by the city.   Robert sued for false arrest and negligent employment or supervision.   Both sought punitive as well as general damages.

ADMISSIBILITY OF LAMB'S PSYCHIATRIC EXAMINATIONS

During trial, plaintiff's counsel obtained a file from the Workers' Compensation Appeals Board which included reports of several psychological and psychiatric examinations of Officer Lamb.   Those reports reflected the officer's description of a number of incidents where he had acted on uncontrollable impulse to inflict unnecessary violence on an arrestee.   These events both preceded and followed the November 1976 incident with the David brothers.

Dr. Michael Singer testified that he is a psychiatrist who had reviewed all of the various reports by other doctors and that he then examined Officer Lamb as an impartial agreed medical examiner and submitted his report to the Workers' Compensation Appeals Board.   Appellants argue at length that Dr. Singer's testimony, including his knowledge of reports prepared by other doctors, was entirely privileged under the psychotherapist-patient privilege, Evidence Code section 1014.   Appellants further urge that there was no waiver of this privilege by reason of the fact that the information was communicated to others in the workers' compensation appeals process.   Appellants' argument is focused on the fact that Officer Lamb always believed his conversations with medical examiners would be confidential to the workers' compensation process.

 This appeal raises the question whether a worker who seeks disability compensation and who discusses his emotional or psychiatric condition with a psychotherapist in utilizing the workers' compensation process, may later claim privilege as to the psychotherapist's report.   We hold that by operation of statute there is no privilege.

Evidence Code section 1017 provides in relevant part:  “There is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient, ․”  The Comment of the Law Revision Commission explains this exception:  “When the psychotherapist is appointed by the court, it is most often for the purpose of having the psychotherapist testify concerning his conclusions as to the patient's condition.   It would be inappropriate to have the privilege apply in this situation.”   The Workers' Compensation Appeals Board acts as a judicial body, exercising judicial functions, and is in legal effect a court.  (Carstens v. Pillsbury (1916) 172 Cal. 572, 577, 158 P. 218;  Bankers Indem. Ins. Co. v. Indus. Acc. Com. (1935) 4 Cal.2d 89, 97, 47 P.2d 719;  Fidelity & Cas. Co. of N.Y. v. Workers' Comp. Appeals Bd. (1980) 103 Cal.App.3d 1001, 1015, 163 Cal.Rptr. 339.)   Any physician who conducts an examination or who is present during an examination conducted as part of the workers' compensation process may be required to report or testify.  (Lab.Code, § 4055).   The rationale expressed in the Comment to Evidence Code section 1017 is directly applied in proceedings of the Workers' Compensation Appeals Board.

 Evidence Code section 1026 states a further specific exception to the psychotherapist-patient privilege.   That section provides:  “There is no privilege under this article as to information that the psychotherapist or the patient is required to report to a public employee or as to information required to be recorded in a public office, if such report or record is open to public inspection.”   Thus, if Officer Lamb's statements to doctors, and their reports, are public records of the Workers' Compensation Appeals Board, there is no privilege to be asserted.   There need be no inquiry as to waiver;  by statute, the officer's belief that his consultations were confidential is not determinative.

Although we find no previous California authority interpreting the public nature of reports within a workers' compensation appeals file, we find that by statutory design the Workers' Compensation Appeals Board is a public agency (Lab.Code, § 111), empowered to conduct hearing open to the public with testimony required to be reported (Lab.Code, § 5708).   Further, under the California Public Records Act, the appeals board file is a “public record” relating to the conduct of the public's business (Gov.Code, § 6252, subd. (d)), and open for public inspection (Gov.Code, § 6253).   From these statutory provisions we conclude that there was no psychotherapist-patient privilege preventing the admissibility of Officer Lamb's psychiatric examinations.¹

 This holding is consistent with the social policy underlying the psychotherapist-patient privilege.   The privilege is designed to preserve privacy.   When an employee turns to the public forum of the workers' compensation appeals process, and seeks disability compensation based on an emotional or psychological condition, it is inappropriate to have the privilege apply.   This rationale underlies the similar patient-litigant exception to the privilege, and is equally applicable here.  “The whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments.   When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege.   The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation.   He cannot have his cake and eat it too.”  (City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 232, 231 P.2d 26.)

 Appellants next assert that the evidence of Officer Lamb's conduct on other occasions was improperly admitted as character evidence.   Again, this evidence was received through the testimony of the psychiatrist who had reviewed the officer's various psychiatric interviews in connection with the workers' compensation claim.   To different doctors, Officer Lamb had described a 1974 event in which he shot a 17-year-old suspect in the head without giving the suspect a chance to surrender.   The officer described his anger during that incident, and how after this event his anger was even less controllable.   In another incident, Officer Lamb told how he broke a suspect's wrist unnecessarily.   The officer also told of an incident in 1977 when he began to beat an arrestee with such force that other officers had to pull him off.   Finally, he recounted that he would suffer blackouts of about 20 seconds after some of these temper outbursts.

In trial, Officer Lamb denied any recollection of having told the various doctors of these events.   He also denied his statement, reflected by the doctors' notes, that after the 1974 shooting incident it seemed to demand less and less to set him off.   He did not deny the events;  he testified that he did not recall the various doctors or telling them about these incidents.   He testified that at one point he was suspended by the department for 20 days because of improper tactics, whereas a doctor reported the officer's statement that he was suspended for 30 days for the use of excessive force.   Lamb also did not recall telling one doctor that he had been directed by his department to seek psychological treatment after he had struck his wife in 1978.

Appellants characterize this testimony as improper evidence of character.   Appellants concede, however, that force was used in the arrest of Richard David.   The question for the trier of fact to determine in this case was the degree of force applied, and whether that force was reasonable.   Thus, evidence of other acts may be admissible to show the absence of mistake or accident in the force that was applied (Evid.Code, § 1101, subd. (b)), or to attack the credibility of the witness (Evid.Code, § 1101, subd. (c)).  Our review of the record here indicates that evidence of other acts was sufficiently limited to the one character trait of uncontrollable rage.   The workers' compensation file was not received in its entirety, but only selected portions indicating this character trait were sent to the jury.  Evidence Code section 1101, subdivision (b) authorizes limited admissibility for this evidence, to show through character that Lamb's response was intended by him (whether or not subject to his impulse control).   The evidence of character had probative value to a fact in issue, that his response was not accidental or mistaken.   This case is unlike People v. Sam (1969) 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700, relied upon by appellant, where the evidence included a range of drunken, bullying conduct portraying the defendant as an “antisocial individual of generally bad character, ․”  (Id., at p. 206, 77 Cal.Rptr. 804, 454 P.2d 700.)

Further, this evidence of other acts tends to impeach Officer Lamb's testimony in trial, denying the infliction of any injuries upon Richard.   The officer told one doctor that there were so many lawsuits against him for his violent behavior that he wanted to leave the department but instead transferred to a desk job.   In trial, the officer denied this reason for the transfer.

Nor was this evidence so highly prejudicial that its probative value was outweighed.   The trial court considered this further objection to its admissibility under Evidence Code section 352.   The court recognized a prejudicial quality to the evidence but still found that the thrust of the testimony was to show that the officer had a tendency to act in a particular way when provoked.   This balancing of considerations is exactly what is required to be articulated by People v. Green (1980) 27 Cal.3d 1, 24, 164 Cal.Rptr. 1, 609 P.2d 468.   We cannot say that the trial court abused its discretion in overruling this objection.

PUNITIVE DAMAGES AWARD

 The jury awarded Robert David $1,000 in general damages on his cause of action for false imprisonment.   Richard David was awarded $2,700 in compensatory damages and $7,800 in punitive damages against Officer Lamb in the cause of action for battery.   The city was not found negligent in its retention or supervision of the officer.²

Appellants assert that the punitive damage award is so grossly disproportionate that it raises a presumption that it is based upon passion or prejudice and is thus excessive as a matter of law.   Appellants' assertion focuses upon the trial arguments of plaintiffs' counsel, that Officer Lamb's credibility was suspect because he either lied to the workers' compensation doctors to inflate his claim or lied to the trial jury to deny an urge to inflict unnecessary violence when provoked.   The evidence of monetary worth was scant:  Lamb received a disability pension from the police department which included the workers' compensation settlement in the amount of $1,300 per month, he had a $7,000 equity in a condominium, and he worked in his father's business for $350 per week.   Appellants calculate the $7,800 punitive damage award to be the same as six months of Lamb's disability pension.

“ ‘The primary purpose of punitive damages is to punish the defendant and make an example of him.  [Citations.]’  (Merlo v. Standard Life & Acc. Ins. Co., supra, [1976] 59 Cal.App.3d [5] at p. 18 [130 Cal.Rptr. 416].)   Accordingly, the punitive damages assessed should bear a reasonable relationship to the net assets of the defendant.  [Citation.]”  (Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 469, fn. omitted, 136 Cal.Rptr. 653.)   Further, “․ although there is no fixed ratio by which to determine the propriety of a punitive damage award, punitive damages should bear a reasonable relationship to the compensatory damages awarded.”  (Ibid.)  Here, the ratio of punitive damages to compensatory damages is less than three to one.   We cannot say that this ratio is excessive as a matter of law.   Neither does the dollar amount appear to be the product of passion or prejudice, nor so grossly disproportionate to the wealth of defendant Lamb that we would set aside the jury's determination.  (See Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 178 Cal.Rptr. 167.)

The judgment is affirmed.

I concur in the result.   Appellant's psychiatric consultations in connection with his workers' compensation proceeding were not for the purpose of curative treatment and thus under the rationale of our Supreme Court in City & County of S.F. v. Superior Court, supra, 37 Cal.2d 227, 231 P.2d 26, were not privileged.¹  Even aside from that, under Evidence Code section 1017 there could be no privilege because the psychotherapists, in effect, were appointed by order of a court for testimony in that forum's proceeding.

To the extent that the majority opinion relies on this reasoning, I am in agreement.   It is my opinion, however, that additional buttressing of the opinion on Evidence Code section 1026 is not justified or necessary.

Section 1026 applies, for example, to situations in which a child molester seeks help—as a patient, with the intent that the communications are confidential—but the psychotherapist is required by statute (Pen.Code, § 11166) to report to the child-protection agency.   The physician-patient privilege corollary to section 1026, section 1006, applies in situations where a doctor is required to report a gunshot wound to public authorities.   (Annot. (1978) 85 A.L.R.3d 1196.)

The analysis of section 1026 in the opinion is a broad discussion and is not closely tailored to the facts.   It is illogical to apply this section to the testimony of a psychotherapist at a Workers' Compensation Appeals Board hearing.   The key point of admissibility is that there was no privilege.   A communication that is protected by a privilege which has not been waived could not become part of the Workers' Compensation Appeals Board public record.   If it were part of the record, it would be so by judicial error.   The fact that the error is compounded because the communication becomes part of a record to which there is public access would not destroy the privilege.   Were there a privileged communication in this case, section 1026 would not operate to allow the psychotherapist to testify over the patient's assertion of that privilege.

FOOTNOTES

FOOTNOTE.  

1.   The facts of this case bear out the practical reality that the workers' compensation file was a public record.   Plaintiffs' counsel obtained the information himself, and no discovery order was required.   (See Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 158, fn. 2, 143 Cal.Rptr. 450.)   We note that section 10754 of title 8 of the California Administrative Code provides in relevant part:  “Where a medical report, medical record or other document filed in a case contains references to or discusses the mental or emotional health of any person ․ such that the workers' compensation judge to whom the case is assigned determines that public inspection of the document should not be permitted, the workers' compensation judge may order the document sealed.”   Not only was this provision not utilized in the instant case, but the file was made available under a “Certification for Evidence” signed by the presiding workers' compensation judge as a full and correct copy of the file.

2.   Appellants urge error in the trial court's refusal to sever the count charging the city with negligence.   We note with approval that when superior officers in the police department became aware of Lamb's violent outbursts, he was directed to seek counseling.   The jury's rejection of any liability on the part of the city may be taken as recognition that the city does not condone nor do most police officers resort to such techniques as described in this case.

1.   Although City & County of S.F. v. Superior Court, supra, 37 Cal.2d 227, 231 P.2d 26, dealt with the physician-patient privilege (Evid.Code, § 992), the language of that privilege is virtually identical to the language of the psychotherapist-patient privilege (Evid.Code, § 1012).

WISOT, Associate Justice *. FN* Assigned by the Chairperson of the Judicial Council.

STEPHENS, J.**, concurs.